Decision No. 321-AT-A-2016

October 21, 2016
APPLICATION by Bruce Kruger against Deutsche Lufthansa Aktiengesellschaft (Lufthansa German Airlines) [Lufthansa] pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c.10, as amended (CTA) concerning difficulties he experienced in relation to his seating needs while travelling between Toronto, Ontario, Canada and Vienna, Austria.
Case number: 
16-02061

INTRODUCTION

[1] Bruce Kruger filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the CTA against Lufthansa concerning difficulties he experienced in relation to his seating needs while travelling between Toronto and Vienna. Mr. Kruger’s booking included the following flight segments:

  • Toronto to Munich, Germany, operated by Lufthansa on September 17, 2015;
  • Munich to Vienna, operated by Lufthansa CityLine GmbH on October 9, 2015; and,
  • Vienna to Toronto, operated by Tyrolean Airways Tiroler Luftfahrt GmbH carrying on business as Tyrolean Airways (Tyrolean Airways) on October 9, 2015.

BACKGROUND

[2] On July 3, 2014, the Agency issued 252-AT-A-2014">Decision No. 252-AT-A-2014 (2014 Decision) regarding an application by Bruce Kruger against Air Canada concerning difficulties he experienced in relation to his seating needs for a trip he booked between Toronto and Panama City, Panama.

[3] The Agency found that Mr. Kruger is a person with a disability due to his severe post-traumatic stress disorder (PTSD) for which the principal impairment is “disabling hypervigilance” with severe anxiety attacks, and accepted that Mr. Kruger’s disability-related needs relate to seating accommodation in the form of a seat that allows him to keep his back against a wall in all public spaces, including in an aircraft.

ISSUES

[4] The Agency will consider the following issues:

  1. Is Mr. Kruger a person with a disability for the purposes of Part V of the CTA?
  2. Does Lufthansa’s policy regarding seating accommodation for persons with disabilities, and how it is applied by its personnel, including in respect of Mr. Kruger’s travel, constitute an undue obstacle to the mobility of Mr. Kruger and other persons with disabilities? If so, what corrective measures should be taken?
  3. Did the alleged difficulty faced by Mr. Kruger in communicating with Lufthansa’s medical desk personnel regarding his disability-related needs constitute an undue obstacle to Mr. Kruger’s mobility? If so, what corrective measures should be taken?

THE LAW

[5] When adjudicating an application pursuant to subsection 172(1) of the CTA, the Agency applies a three-step process to determine whether there is an undue obstacle to the mobility of a person with a disability. The Agency must determine whether:

  1. the person who is the subject of the application has a disability for the purposes of the CTA;
  2. an obstacle exists because the person was not provided with appropriate accommodation to address their disability-related needs; and,
  3. the obstacle is “undue.” An obstacle is undue unless the transportation service provider demonstrates that there are constraints that make the removal of the obstacle either unreasonable, impracticable, or impossible, such that to provide any form of accommodation would cause the transportation service provider undue hardship.

ISSUE 1: IS MR. KRUGER A PERSON WITH A DISABILITY FOR THE PURPOSES OF PART V OF THE CTA?

The Agency’s approach to determining disability

[6] While there are situations where a disability is self-evident (e.g., a person who uses a wheelchair), there are cases where additional evidence is required to establish both the disability and the need for accommodation. In assessing those cases, the Agency may use the World Health Organization’s (WHO) International Classification of Functioning, Disability and Health (ICF), an internationally accepted tool for the consistent classification of functioning and disability associated with health conditions, other related WHO publications, and/or medical documentation.

This case

[7] In a medical note dated August 2015, Mr. Kruger’s doctor indicates that Mr. Kruger has PTSD for which the most prominent disabling symptom is extreme hypervigilance. As a result, Mr. Kruger’s doctor recommends that he avoids significant distress, and that he not be seated in a location where a person could pass behind him.

[8] The Agency found, in its 2014 Decision, that Mr. Kruger has an impairment, experiences activity limitations, and encounters participation restrictions in the context of travel within the federal transportation system as a result of PTSD. These findings are supported by the recent medical note filed by Mr. Kruger. Lufthansa does not dispute that Mr. Kruger is a person with a disability for the purposes of Part V of the CTA as a result of PTSD.

[9] The Agency finds that Mr. Kruger is a person with a disability for the purposes of Part V of the CTA as a result of PTSD.

The Agency’s approach to determining an obstacle

[10] Service providers have a duty to accommodate persons with disabilities. A person with a disability will face an obstacle to their mobility if they demonstrate that they need – and were not provided with – accommodation, thereby being denied equal access to services available to others in the federal transportation network.

[11] A service or measure that is required to meet a person’s disability-related needs is referred to as “appropriate accommodation”. If it is determined that the person was provided with an accommodation that met their disability-related needs, it cannot be said that they have encountered an obstacle.

The Agency’s approach to determining whether an obstacle is undue

[12] An obstacle is undue unless the service provider can justify its existence by demonstrating that it can neither provide the service necessary to accommodate the person’s disability-related needs nor any other form of accommodation without incurring undue hardship. The test that a service provider must meet in order to justify the existence of an obstacle consists of three elements. The service provider must demonstrate that:

  1. the source of the obstacle is rationally connected to the provision of the transportation service;
  2. the source of the obstacle was adopted based on an honest and good faith belief that it was necessary in order to provide the transportation service; and,
  3. it cannot provide any form of accommodation without incurring undue hardship.

ISSUE 2: DOES LUFTHANSA’S POLICY REGARDING SEATING ACCOMMODATION FOR PERSONS WITH DISABILITIES, AND HOW IT IS APPLIED BY ITS PERSONNEL, INCLUDING IN RESPECT OF MR. KRUGER’S TRAVEL, CONSTITUTE AN UNDUE OBSTACLE TO THE MOBILITY OF MR. KRUGER AND OTHER PERSONS WITH DISABILITIES? IF SO, WHAT CORRECTIVE MEASURES SHOULD BE TAKEN?

[13] In its consideration of this issue, the Agency will also address whether the alleged difficulty for Mr. Kruger to obtain confirmation that his disability-related needs would be accommodated on the flight segment operated by Tyrolean Airways on his October 9, 2015 flight, and the alleged difficulty of Mr. Kruger in communicating with Lufthansa’s medical desk personnel, constitute undue obstacles to his mobility.

Facts, evidence and submissions

Positions of the parties

Mr. Kruger

[14] Mr. Kruger states that he called Lufthansa shortly after booking his flight through Air Miles in February 2015 to explain his seating needs due to his PTSD. Mr. Kruger states that the Lufthansa agent assured him that the seat he needed would be reserved for him.

[15] At the check-in counter in Toronto on September 17, 2015, Mr. Kruger was informed that he was assigned a seat that did not meet his requirements. Mr. Kruger was told that the window seat was not available, and that no passenger could be reseated as Lufthansa was not notified of Mr. Kruger’s medical needs more than 24 hours in advance of departure. After some discussion, Mr. Kruger was assigned a seat that was “manageable”, but did create “difficulties for [him]” as he was seated between two aisles and not next to a window.

[16] While discussing the issue with the supervisor at the airport check-in counter in Toronto on September 17, 2015, Mr. Kruger asked to pre-book his return seat for the same medical reasons and was informed that he would be required to pay $20 per seat to do so. The supervisor further indicated that Lufthansa does not have a medical desk, and informed Mr. Kruger that he would have to wait 24 hours prior to his flight to convey his disability-related needs to someone at the “Lufthansa reception desk in Munich”. Mr. Kruger then contacted the Lufthansa office in Germany to arrange his seat selection, and was referred to the medical desk in New York City. By telephone message, Mr. Kruger provided his contact information to the medical desk and was advised via a recording that he would be contacted within 24 hours. Mr. Kruger states that he made several follow-up telephone calls and was able, after several days, to obtain a confirmation that a “safe seat” was booked for him on his flight from Munich to Vienna, but not on his flight from Vienna to Toronto, given that it was operated by Tyrolean Airways. Mr. Kruger submits that the Lufthansa agent initially advised that the accommodation of his needs on the portion of his flight operated by Tyrolean Airways “was not a Lufthansa problem”. He adds that it is only after arguing with the agent about the tickets showing “Lufthansa” as the carrier for each flight that the agent agreed to coordinate the seat selection with Austrian Airlines.

Lufthansa

[17] Lufthansa disputes that it was advised of Mr. Kruger’s disability prior to his check in on September 17, 2015 as there was no mention of a special service request (SSR) in the passenger name record (PNR), nor was there any record of any calls between Mr. Kruger or his agent and Lufthansa prior to the day of his flight.

[18] On the day of travel, Lufthansa informed Mr. Kruger that the flight was full and that it was unable to accommodate him. In the end, a supervisor made “every effort to accommodate Mr. Kruger” and reseated a passenger even though, as explained by Lufthansa, “this is not required pursuant to Lufthansa’s Conditions of Carriage or Tariff”.

[19] Lufthansa states that, after having been advised on September 17, 2015 to contact the medical desk in New York, Mr. Kruger left a voice mail with the medical desk at 4:55 p.m., which is outside of Lufthansa’s medical desk business hours. Lufthansa submits that the following day, Friday, September 18, 2015, Lufthansa’s medical desk in New York reviewed Mr. Kruger’s voice message and “forwarded the issue” to Customer Relations, which would then be able to contact Austrian Airlines and request the seating accommodation needed by Mr. Kruger. The following Tuesday, September 22, 2015, the Customer Relations Claim was assigned to a Customer Relations specialist who, according to Lufthansa, immediately assigned a suitable seat for the flight from Munich to Vienna.

[20] On Wednesday, September 23, 2015, the Customer Relations specialist reached Mr. Kruger on his cell phone and informed him that she would contact Austrian Airlines regarding the Vienna‑Toronto flight segment. Lufthansa states that, at that time, Mr. Kruger was informed that there might be a fee associated with his request pursuant to Austrian Airlines’ policy regarding advance seat selection. Mr. Kruger requested a waiver of that fee. The specialist then sent an e-mail to Austrian Airlines requesting the seating accommodation and the waiver of the $20 fee. On Thursday, September 24, 2015, the specialist received a response from Austrian Airlines, providing the requested accommodation and waiving the $20 fee. Lufthansa’s Customer Relations specialist attempted to reach Mr. Kruger at 10:05 a.m. and 11:45 a.m. New York time to relay this information, but was only able to reach him on the following day.

Analysis and findings

[21] Adequate advance notice from persons with disabilities of their disability-related needs is desirable to alleviate the stress caused by the need for accommodation. When adequate advance notice is provided, transportation service providers must accommodate persons with disabilities up to the point of undue hardship. In this case, the parties’ versions regarding the events surrounding whether Mr. Kruger called in advance of his flight to disclose his disability and request his needed seating accommodation are contradictory.

[22] In respect of Mr. Kruger’s inbound flight, the fact that an airline serves a foreign destination from Canada in part or in full through a code-share arrangement with a partner carrier does not relieve it from its obligation to ensure the accommodation of passengers with disability-related needs. Lufthansa’s personnel conveyed Mr. Kruger’s disability-related needs to its code-share partner, Tyrolean Airways, four business days after Mr. Kruger left a voice mail with the Lufthansa medical desk. This delay was problematic as it aggravated Mr. Kruger’s anxiety regarding whether he would be accommodated and able to travel. In its explanation of the delay, Lufthansa does not account for a period of approximately two days out of the four days in question: Mr. Kruger’s request was received by Customer Relations on the morning of Friday, September 18, 2015, yet Lufthansa does not seem to have taken any action until the request was assigned to a Customer Relations specialist on Tuesday, September 22, 2015. Nonetheless, Mr. Kruger’s seating accommodation was secured on September 23, 2015, and confirmed to him on September 25, 2015, two weeks in advance of his inbound flight. Further, Mr. Kruger’s disability‑related needs were adequately accommodated on the segment of his inbound flight that was operated by Tyrolean Airways, such that there was no obstacle to his mobility.

[23] Regarding the application of Lufthansa’s seating policy by its personnel, Mr. Kruger notes that he was advised to wait 24 hours before the scheduled departure of his inbound flight to book his seat, which is contrary to the policy submitted by Lufthansa setting out that accommodation measures should be requested “no later than 48 hours before departure”. Similarly, Mr. Kruger submits that Lufthansa’s personnel were unaware of the existence of a medical desk and referred him to its Germany office to request his seating accommodation when, in fact, Lufthansa has a medical desk in New York. Mr. Kruger also submits that he had to insist with Lufthansa’s personnel to be accommodated on its code-share flight. Lufthansa remained silent on all of these assertions.

[24] In addition to the lack of knowledge on the part of Lufthansa’s personnel in regard to accommodation measures relating to its seating policy, there was some confusion on the part of Lufthansa’s personnel with respect to Lufthansa’s policies in relation to the coordination of seat selection with code-share partners. The Agency points out that section 4 of the Personnel Training for the Assistance of Persons with Disabilities Regulations, SOR/94-42 requires that training on the policies and procedures of the air carrier with respect to persons with disabilities be provided to employees who provide transportation-related services, interact with the public or make decisions with respect to the carriage of persons with disabilities to ensure that they are aware of, and sensitive to, the particular needs of persons with disabilities and are able to provide the necessary level of service to such travellers.

[25] The Agency notes that Mr. Kruger made considerable efforts, following the incident he experienced on his outbound flight, to ensure that he would be provided with suitable seating accommodation on subsequent flights. In this regard, Mr. Kruger made arrangements with the airport check-in supervisor to pre-book his return seat and contacted Lufthansa’s medical desk to arrange his seat selection, including making several follow-up telephone calls to obtain confirmation that suitable seating was booked for him on his flight from Munich to Vienna and also on his flight from Vienna to Toronto.

[26] In light of the foregoing, the Agency finds that the lack of knowledge of Lufthansa’s personnel in relation to both its seating policy for persons with disabilities and the coordination of seat selection with code-share partners, and the delays in communications amount to an obstacle to the mobility of persons with disabilities, including Mr. Kruger.

[27] Lufthansa did not justify the existence of the obstacle, and as such, the Agency finds that the obstacle is undue.

ORDER

[28] The Agency finds that the following constitute undue obstacles in this case:

  • Lufthansa’s personnel’s lack of knowledge and awareness of Lufthansa’s seating policy for persons with disabilities; and,
  • Lufthansa’s personnel’s lack of knowledge with respect to the coordination of seat selection for flights with code-share partners.

[29] Therefore, the Agency orders Lufthansa to:

  • Amend its current seating policy, as applicable, to reflect the importance for personnel to discuss with passengers with disabilities in order to have a better understanding of their needs, and ensure that the policy is properly applied by its personnel. The policy should stress the importance of respecting a passenger’s wishes, unless cabin safety is jeopardized. Furthermore, the policy should be explicit about giving priority to a passenger who requires a specific seat type as a result of a disability over a person who prefers, but does not require, that particular seating, such that the assignment of seating meets the obligation to accommodate disability-related needs up to the point of undue hardship;
  • Ensure that all personnel (i.e., at booking, check in, in-flight, etc.) in contact with persons with disabilities requiring seating accommodations receive communications, guidance, and training to ensure an understanding, and the appropriate application, of the seating policy and related procedures; and,
  • Ensure that its seating policy for persons with disabilities and its policy on the coordination of seat selection with code-share partners are properly applied by its personnel.

[30] The Agency orders Lufthansa to file a copy of its revised policies, related procedures and training material with the Agency, in addition to reflecting the revised policies on its website. Lufthansa has until January 19, 2017 to comply with this order.

Member(s)

Scott Streiner
P. Paul Fitzgerald
William G. McMurray
Date modified: